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Thomas Peele: Media and public have to fight for rights or get boiled alive

James Risen of The New York Times likens the U.S. media to a frog sitting in a pot of water set to boil.

No matter how hot it gets, no matter how fast the assaults from the government in the forms of subpoenas and surveillance come on a supposedly free press, the frog just sits there as the temperature rises, refusing to jump out and save itself.

Risen's case, and his refusal to reveal a CIA source who provided him with information for a book he wrote, is well known: A panel of federal appellate judges have ruled he must identify the person who aided his reportage. He's appealing to the Supreme Court, arguing that his First Amendment rights to honor his word to sources who spoke to him under assurances of anonymity trumps all.

It's a case that's gotten a fair amount of attention. But, as Risen pointed out in Berkeley last month, not enough to make the frog jump from the pot. And he's far from alone in facing the clanging of a cell door for honoring journalism's highest commitment.

In Louisiana, John Simerman, formerly a reporter for this newspaper, and his editor, Gordon Russell, are being forced to testify in federal court next week. The consequences could be grave. Judge Martin Feldman appears poised to allow defense attorneys to ask who told them a grand jury indictment was about to be issued against New Orleans crime lord Telly Hankton.

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Feldman would probably have a better chance of standing on the banks of the Mississippi and ordering the river to stop flowing than he will at getting Simerman and Russell to say who told them that indictments were imminent.

The judge, an appointee of Ronald Reagan, has been likened to Supreme Court Justice Anton Scalia in judicial temperament and philosophy. In other words, he's about as nuanced as a cement block. There's real fear he'll find Simerman and Russell in contempt. Fines and jail time are possibilities, First Amendment be damned.

Let me say here that Simerman's my friend, not that it matters in defending his First Amendment rights. We worked together for years, occasionally at each others throats, mostly not. I have nothing but praise and respect for his journalism. There are few other reporters I'd rather be around. He's simply an excellent news person, as is, by reputation, Russell. They nailed the indictment story in the New Orleans Times-Picayune, no small feat﻿. (Ironically, both men now work for the rival Baton Rouge Advocate. The Picayune is paying for their lawyers).

The defense is arguing that their work could've influenced the grand jury. Assuming the reporters' sources were from federal law enforcement, Hankton wants the charges dismissed.

It is very likely going to come down to questions the journalists won't answer if they want to walk out of court with their credibility and careers intact. And there's nothing other than Feldman's whim blocking it.

It's another desperate example of why a federal shield law is needed to protect journalists and allow them to do their jobs as public servants.

The one that the Senate Judiciary Committee passed last year has yet be voted on by the rest of Congress. Whether it could pass the Republican-held House is an open question.

And it has huge exemptions for national security matters and would be no help to a reporter in Risen's position. It would likely help Simerman and Russell, blocking their testimony the way that laws in nearly every state keep journalists off the stand in all but extreme instances.

A tough law, with no national security exemption, is badly needed. But there's little chance that President Barack Obama, clearly an enemy of a free press, would sign one.

Which brings us back to Risen's boiling frog: The media's just sitting in the pot as the water gets hotter and not controlling its own fate.

Too many of us are playing kissy face with power or chasing tabloid junk rather than doing real work or jumping out and fighting for the heat to be turned down. What we need is to ask the public to help demand a tough law. I know, fat chance.

However, suppose this: What if every journalist in the country walked off the job on the same day in protest? No protections. Then people will not get any newspapers, Web pages or insufferable cable news shows. News silence. Perhaps showing what would happen if all of us were silenced -- the way Risen, Simerman and Russell may soon be -- would sway opinions.

Sooner or later, that frog's either gotta jump or it will just boil into mush.

Thomas Peele is an investigative reporter for this newspaper and teaches public records at the UC Berkeley Graduate School of Journalism. Follow him @thomas_peele.

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